(If you enjoy the stuff on Socrates, try the whole picture: Dare to Struggle. The history and Society of the Greeks by Richard M. Berthold.)
George Zimmerman has just been acquitted of murder or manslaughter in his killing of Trayvon Martin, and an outraged public is demanding the federal government try him again on a civil rights charge. (This mechanism was certainly valuable in circumventing blatantly racist courts in the South, but it still smacks of double jeopardy.) The outrage results from the widespread feeling that despite the not guilty verdict Zimmerman committed some crime, inasmuch as a young man doing nothing wrong and minding his own business was shot, regardless of whether he started the fight. The assertion is that this outcome is wrong and unjust, a failure of our system of justice. The same was said regarding the acquittal of Casey Anthony, who many believe did in fact kill her child, and the grandest example is of course O.J. Simpson, who was acquitted despite being obviously guilty.
These outcomes may be considered wrong or unfair, but they are not at all unjust. In these instances the prosecution may be said to have failed, but the system did not. The reason is that justice has nothing to do with fairness, as most people believe. The simple fact is that justice is rooted in the law, not in any vague notions of what is right or fair. The law must be universal, applying to everyone in the society, and it must be relatively precise and well defined. It is produced and established by political mechanisms acceptable by all, at least in a free society, and being a citizen is an implicit acceptance of any law so produced, even if one disagrees with it.
Ideas of right and wrong, that is, one’s understanding of morality, are manifestly not universal, either in interpretation or circumstance. Most humans derive or at least associate their ethics with a deity, and the few that do not accept a god figure it out for themselves, influenced by the circumstances of their lives. Consequently, beyond the basic moral tenets seemingly hard-wired in the human brain (do not murder, do not sleep with your sister, etc.) ideas of right and wrong are going to vary greatly, even among adherents of the same religious tradition. The mechanisms here – god or individual conscience – are not accepted by everyone in the society, and moral conclusions are thus not valid for all and no basis for regulating society.
And so public behavior is regulated by an entirely – at least theoretically – secular and morally neutral apparatus, the justice system. You may feel free to believe that our civil rights come from god (they actually derive from the people; that is what constitutionalism is), but the protection and regulation of those rights has no more to do with deity than it does with magic. The law does not determine what is right or fair; it determines what is legal and acceptable behavior. We hope that our laws reflect our ideas about morality and fairness, but the bottom line is that what is just is not necessarily also what is fair.
The grandest expression of this fundamental aspect of constitutional society, an idea foreign to most people, is the trial and death of Socrates (469-399 BC). He was not executed, as many think, by an Athenian society suddenly become intolerant of free speech, but because of his commitment, even unto death, to justice as he (correctly) understood it. The charges brought against him in 399 were impiety and corruption of the youth, both valid under Athenian law, but the real reasons behind his indictment were political.
Athens’ defeat by Sparta in 404 led to a year and a half of despotic oligarchic rule, the Thirty Tyrants, and in the nervous climate of the restored democracy Socrates suffered from his negative public image – no one likes a wiseass gadfly – and earlier association with such notorious anti-democrats as Critias and Alcibiades. A general amnesty prevented Socrates’ enemies from leveling overt political charges, and instead they sought to drive him into exile by raising these other accusations, taking advantage of a growing popular irritation with criticism of traditional religious ideas. Already in the sixth century the new rationalists had begun assaulting the traditional religion, which because of its extreme anthropomorphism was an easy target; the all too human gods plainly did silly things, and many of the rituals of the civic religion were absurd when viewed objectively. In the fifth century the sophists, the first political/social scientists, continued the attack, and by the second half of the century they had discovered atheism, though it is nowhere directly expressed.
It was difficult, if not impossible, to refute these criticisms, especially with regard to the anthropomorphism, and the frustration of the traditionalists led to growing aggravation and public trials for asebeia, impiety. Traditionally, asebeia had involved overt acts of sacrilege, such as violating sanctuaries or profaning the mysteries, but in fifth century Athens the definition expanded to include less demonstrable offences, such as introducing new gods and not believing in the gods of the city, the charges leveled against Socrates. These accusations do not appear to be true, but Socrates was in many ways a very annoying person, and many were more than ready to accept these distortions of his real beliefs.
To the apparent surprise of his enemies, Socrates did not flee, but stood trial and was convicted by a only a narrow margin of votes (out of 501), demonstrating that in this instance at least the Athenians were not given to a lynch mob mentality. The Athenian court did not have judges, and in a broad category of cases the prosecution, which consisted of the citizens who brought the charges, was entitled to propose a penalty, to which the defense would reply with a counter-penalty, leaving it to the jury to choose in a sort of post-conviction plea bargaining. The prosecution asked for death, expecting the defense to propose a stiff fine (the Greeks did not normally imprison people), which the jury would select as the punishment. But ever the wiseass, Socrates proposed that he pay a ridiculously small fine and receive free board from the state for the rest of his life in order that he could continue enlightening and annoying his fellow Athenians. The jury was not amused with the suggestion of making a mockery of the system and chose death (still by a close margin), but every opportunity was given Socrates to escape into exile, since death was clearly an inappropriately drastic punishment for the crimes for which he was convicted. He insisted, however, that the execution be carried out and drank the poison.
Why? Because unfair though the condemnation might be, Socrates had been tried and convicted justly, that is, according to the laws of Athens, and such was his commitment to the law that he refused to violate it even under such extreme circumstances. Socrates was making, about as dramatically as one can, this essential point about the nature of justice: it is rooted in the law, not the public’s notions of right and wrong. Socrates might be generally accused of a certain intellectual dishonesty in that he used his considerable powers of argument to demonstrate only conclusions compatible with his view of things, but his death is surely one of the noblest examples in history of dying for ones principles.
The acquittals of loathsome characters like Casey Anthony and O.J. Simpson are of course unfair and disgusting, but they are just. They were accused, tried and judged according to the law, and their trials involved no illegalities or misbehavior. It is sad that no one legally bears the responsibility for the death of Trayvon Martin, and it is disturbing that George Zimmerman’s vigilantism has been validated in the eyes of many. But his acquittal was manifestly not a travesty of justice. It in fact demonstrated that the justice system works, determining guilt or innocence of the basis of the law, not public opinion or someone’s definition of right and wrong.